Announcing Conn Maciel Carey’s 2022 Labor and Employment Webinar Series
The legal landscape facing employers seems as difficult to navigate as it has ever been. Keeping track of the ever-changing patchwork of federal, state and local laws governing the workplace may often seem like a full-time job whether you are a human resources professional, in-house attorney or business owner. Change appears to be the one constant. As we enter Year 2 of President Biden’s Administration, employers will continue to closely track the changes taking place at the NLRB, the DOL and the EEOC. At the same time, a number of states will continue introducing new laws and regulations governing workplaces across the country, making it more important than ever for employers to pay attention to the bills pending in the legislatures of the states where they operate.
To register for an individual webinar in the series, click on the link in the program description below. To register for the entire 2022 series, click here to send us an email request, and we will register you. If you missed any of our programs from the past seven years of our annual Labor and Employment Webinar Series, here is a link to an archive of recordings of those webinars.
2022 Labor and Employment Webinar Series – Program Schedule
On September 22, 2021, California became even more labor friendly when Governor Newsom signed AB 701 which adds additional requirements to California’s existing meal and rest breaks rules for non-exempt warehouse employees. Effective January 1, 2022, employers covered by AB 701 must disclose all quotas to warehouse employees that the employee may be subject to. Employers are subject to a rebuttable presumption of retaliation against employees who are subject to an adverse employment action within 90 days of engaging in protected activity under AB 701. Employers must make the disclosure to each employee upon hire or within 30 days of the law going into effect.
The seemingly never ending battle over employment arbitration agreements in California continues with last week’s Ninth Circuit court decision vacating a preliminary injunction over 2019’s California Assembly Bill 51 (previously discussed here and here).
Back in 2019, California Governor Gavin Newsom signed Assembly Bill 51, which added section 432.6 to the California Labor Code and sought to ban new mandatory arbitration agreements to the extent they cover any discrimination claims under the California Fair Employment and Housing Act (FEHA), or any claims under the California Labor Code. Under this legislation, an applicant or employee could not, as a condition of employment, continued employment or the receipt of any employment-related benefit, be required to waive any right, forum, or procedure under the FEHA or any other specific statute governing employment. Employers would also be prohibited from threatening, terminating or otherwise retaliating or discriminating against an applicant or employee because of the refusal to consent to a waiver. Violations of these provisions would constitute unlawful employment practices under the FEHA and would be a misdemeanor.
On the heels of Donohue v. AMN Services, LLC recognizing a rebuttal presumption of meal period violations based on the employer’s time records alone – as discussed in our prior blog post – the California Supreme Court has, in another blow to employers, ruled that the premium pay required where the employer does not provide meal, rest or recovery periods is not based on the hourly rate of pay (as had previously been understood). In essence, the California Supreme Court has found that the “rate of compensation” for the purpose of determining the additional hour of pay due to employees who are not provided meal, rest or recovery periods is synonymous with the overtime rate of pay and must include all nondiscretionary payments, not just hourly rates.
As we dream of a “post-COVID” world, some obligations stemming from the pandemic will certainly be with us for some time. One such obligation for some employers to note is California’s rehiring and retention requirements.
California Senate Bill 93, which added Labor Code section 2810.8, brings statewide requirements for covered employers to offer available job positions to employees laid-off due to the COVID-19 pandemic. Covered businesses include hotels, private clubs, event centers, airport hospitality operations, airport service providers, and those providing janitorial, building maintenance or security services to office, retail or other commercial buildings. This section also applies even when an employer experiences certain ownership or organizational changes, for example, a change in ownership where the business is conducting the same or similar operations as before the COVID-19 state of emergency.
The law requires that, within 5 business days of establishing a position, a covered employer offer its employees laid off due to COVID-19 pandemic, in writing, “all job positions that become available [after its effective date] for which the laid off employees are qualified.” Such qualification is determined based on the laid off employee holding the same or similar position at the time of the recent layoff. If more than one employee is entitled to preference for a position, the employer must offer the position to the laid off employee with the greatest length of service on the employee’s date of hire. The employee is afforded 5 business days to respond to the offer.
California has just reinstated the COVID-19 specific paid sick leave law that expired at the end of 2020 but this time with a twist. As we discussed in a blog post last year, California enacted the 2020 COVID-19 Supplemental Paid Sick Leave law to extend benefits to employees not covered by the paid benefits provision of the Families First Coronavirus Response Act (FFCRA). While the FFCRA’s paid sick leave provision lapsed on December 31, 2020 along with California’s 2020 COVID-19 Supplemental Paid Sick Leave law, California has just passed, effective March 29, 2021, the 2021 COVID-19 Supplemental Paid Sick Leave law extending benefits again with significantly expanded eligibility.
The 2021 COVID-19 Supplemental Paid Sick Leave law requires all California employers with more than 25 employees to provide COVID-19 related paid sick leave (up to 80 hours) to employees who cannot work or telework due to the reasons discussed below. This paid leave is in addition to any payment that was provided under the previous COVID-19 Supplemental Paid Sick Leave law expiring on December 31, 2020. The 2021 COVID-19 Supplemental Paid Sick Leave law does not apply to independent contractors, unlike the previous law, and expands upon the eligibility criteria. The California Department of Industrial Relations (DIR) has issued 2021 COVID-19 Supplemental Paid Sick Leave FAQs offering detailed guidance on this new law.
Covered employees are now eligible under the 2021 COVID-19 Supplemental Paid Sick Leave law if they are unable to work or telework due to any of the following reasons:
The covered employee is subject to a quarantine or isolation period related to COVID-19, as defined by an order or guidelines of the State Department of Public Health, the federal Centers for Disease Control and Prevention, or a local health officer who has jurisdiction over the workplace
The covered employee has been advised by a healthcare provider to quarantine due to COVID-19, or is experiencing symptoms of COVID-19 and is seeking a medical diagnosis
The covered employee is caring for a family member (as defined) who is either subject to a quarantine or isolation period or has been advised by a healthcare provider to quarantine due to COVID-19
The covered employee is caring for a child whose school or place of care is closed or unavailable due to COVID-19 on the premises
The covered employee is attending a vaccine appointment or cannot work or telework due to vaccine-related symptoms
The California Supreme Court has largely been silent on meal period questions since its seminal decision in Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004 (Brinker), clarifying that an employer satisfies its obligation to provide meal periods where it “relieves its employees of all duty, relinquishes control over their activities and permits them a reasonable opportunity to take an uninterrupted 30-minute break, and does not impede or discourage employees from doing so….” Brinker made clear that an employer is not obligated to police meal breaks and ensure no work is performed during these breaks. Despite this silver lining for employers, litigation has proliferated post Brinker in the form of class actions seeking premium pay – one hour’s pay at the employee’s regular rate of compensation for each workday a meal period is not provided – as well as collective actions under the Private Attorneys Generals Act (PAGA) pursuing penalties for alleged meal period violations.
While the Brinker decision can be parsed to support an employer’s or employee’s legal position, the Supreme Court has just issued a notable class action decision in Donohue v. AMN Services, LLC (Donohue) dealing a resounding blow to employers by, for the first time, prohibiting rounding of time punches for meal periods and creating a presumption of a meal period violation based on the employer’s time records.
In that case, the employer, AMN Services, maintained policies and procedures for Continue reading →
The legal landscape facing employers seems as difficult to navigate as it has ever been. Keeping track of the ever-changing patchwork of federal, state and local laws governing the workplace may often seem like a full-time job whether you are a human resources professional, in-house attorney or business owner. Change appears to be the one constant. As President Trump’s Administration comes to an end, employers will continue to closely track the changes taking place at the NLRB, the DOL and the EEOC. At the same time, a number of states will continue introducing new laws and regulations governing workplaces across the country, making it more important than ever for employers to pay attention to the bills pending in the legislatures of the states where they operate. This complimentary webinar series will focus on a host of the most challenging and timely issues facing employers, examining past trends and looking ahead at the issues most likely to arise.
To register for an individual webinar in the series, click on the link in the program description below. To register for the entire 2021 series, click here to send us an email request, and we will register you. If you missed any of our past programs from our annual Labor and Employment Webinar Series, click here to subscribe to our YouTube channel to access those webinars.
2020 has been another banner year for California employment laws, with legislation and Cal/OSHA rulemaking associated with COVID-19 prevention and reporting taking center stage. In our annual update of new employment laws impacting California private sector employers, we lead off with California’s COVID-19 related laws, given their far-reaching impact on the state’s workforce during the pandemic as employers continue to implement measures to prevent the spread of COVID-19 in the workplace. We have also addressed other substantive legislative developments, particularly in the areas of wage and hour law and reporting of employee pay data. Unless otherwise indicated, these new laws will take effect on January 1, 2021.
On November 19, 2020, the California’s Occupational Safety and Health Standards Board (Standards Board) voted unanimously to adopt an Emergency COVID-19 Prevention Rule following a contentious public hearing with over 500 participants in attendance (albeit virtually). The Emergency Rule was then presented to California’s Office of Administrative Lawfor approval and publication. The Rule brings with it a combination of requirements overlapping with and duplicative of already-existing state and county requirements applicable to employers, as well as a number of new and, in some cases, very burdensome compliance obligations.
The Standards Board’s emergency rulemaking was triggered last May with the submission of a Petition for an emergency rulemaking filed by worker advocacy group WorkSafe and National Lawyers’ Guild, Labor & Employment Committee. The Petition requested the Board amend Title 8 standards to create two new regulations Continue reading →
As the U.S. is entering the third wave of COVID-19 as virus cases continue to rise nationwide, employers should not only be aware of their obligations under the federal Families First Coronavirus Response Act, but also recent state laws such as California’s COVID-19 Supplemental Paid Sick Leave and New York State’s COVID-19 Leave Law.
As we have discussed in a prior blog post, the Families First Coronavirus Response Act (FFCRA) requires private employers with 500 or fewer employees to provide paid sick leave generally when an employee is unable to work because the employee is experiencing COVID-19 symptoms or has a bona fide need to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19.